Can my wife remain in USA while I-130 is pending? HELP!

[BlueBlur25 0]

I've read a lot of information on I-130, and whether or not my now recently married wife, may remain in the USA while the I-130 is pending. She is a Canadian citizen.

 

Background: My wife, (girlfriend at the time) came to the USA on June 24th under a B2 visa in her passport, and stayed with me until December 8th. She discovered she was pregnant and returned on February 1st to inform me of this and to figure out what we both wanted to do. The officer at the point of entry almost wouldn't let her in, but ultimately gave her until Feb.24th. We decided to get married, and did so on February 14th, and have mailed an I-130 with everything by FedEx to be received Feb.21st at the immigration offices.....

 

Can my pregnant wife stay while the I-130 is pending? 

 

I'm trying to get a direct answer, because we don't want to tick off immigration and get denied anything. I've read a lot of "YES" and "NO" and "well sure, but you gotta get a K3 visa". She didn't necessarily plan to immigrant and stay permanently, but it ended up sort of looking like that, but I want her to be with me to have the baby in America and to receive my health insurance coverage.

 

From what I understand, our worst case scenario is that she will need to return to Canada and we'll need to submit forms for a K3 visa to get her back, and she'll be fine while the I-130 is processing, and finally finish everything of the AOS forms.

 

Any help is appreciated, trying our best o avoid having her return to Canada.

[Transborderwife 4,666]

why not file adjustment of status for her instead?

[Roel 7,193]

Since you already got married, you shouldn't have apply for the spouse visa... You should have just do the AoS.

K3 is no longer used.

 

I don't know how it works with Canadians and their B2 visas (if she can overstay or not, if its forgiven or not), but she will have to go back to Canada for her medical and interview anyway.

Edited February 20, 2017 by Roel

[Unlockable 7,316]

Yes, she can stay.

[BlueBlur25 0]

Well, we were given bad information overall by a local civic center, who advised to get married and to then file the I-130 and to disregard the February 24th return date that was stamped on her passport.

 

We had a lawyer friend who attended our wedding offer to help us file a I-130, but then we discovered we could have done the fiance visa and had 90 days to sort all this out. I'm rather exhausted by the whole process, and just want to ensure we don't do anything that could be considered "negative" by immigration. We would have filed the AOS simultaneously with the I-130, but the fee is over $1,000 last I checked on the immigration website.

 

NuestraUnion, you said she could stay based on everything I said? Are you able to elaborate on how that works? Is having the I-130 marked as "received" by immigration enough, or must it be marked "processed"?

 

Thanks for the replies thus far.

[Transborderwife 4,666]

1 minute ago, BlueBlur25 said:

Well, we were given bad information overall by a local civic center, who advised to get married and to then file the I-130 and to disregard the February 24th return date that was stamped on her passport.

 

We had a lawyer friend who attended our wedding offer to help us file a I-130, but then we discovered we could have done the fiance visa and had 90 days to sort all this out. I'm rather exhausted by the whole process, and just want to ensure we don't do anything that could be considered "negative" by immigration. We would have filed the AOS simultaneously with the I-130, but the fee is over $1,000 last I checked on the immigration website.

 

NuestraUnion, you said she could stay based on everything I said? Are you able to elaborate on how that works? Is having the I-130 marked as "received" by immigration enough, or must it be marked "processed"?

 

Thanks for the replies thus far.

Yes the fee for everything medical as well will be roughly $1500+.  In your case, I'd get a loan and do it, borrow from whomever, use tax return etc.

[Unlockable 7,316]

45 minutes ago, BlueBlur25 said:

Well, we were given bad information overall by a local civic center, who advised to get married and to then file the I-130 and to disregard the February 24th return date that was stamped on her passport.

 

We had a lawyer friend who attended our wedding offer to help us file a I-130, but then we discovered we could have done the fiance visa and had 90 days to sort all this out. I'm rather exhausted by the whole process, and just want to ensure we don't do anything that could be considered "negative" by immigration. We would have filed the AOS simultaneously with the I-130, but the fee is over $1,000 last I checked on the immigration website.

 

NuestraUnion, you said she could stay based on everything I said? Are you able to elaborate on how that works? Is having the I-130 marked as "received" by immigration enough, or must it be marked "processed"?

 

Thanks for the replies thus far.

Based on her AOS since she is in the US and has gotten married to you like others have already mentioned.

 

We all know the process can be confusing and frustrating. Take a moment to review the guides to give you some clarity of the process,

http://www.visajourney.com/content/i130guide2

[BlueBlur25 0]

41 minutes ago, NuestraUnion said:

Based on her AOS since she is in the US and has gotten married to you like others have already mentioned.

 

We all know the process can be confusing and frustrating. Take a moment to review the guides to give you some clarity of the process,

http://www.visajourney.com/content/i130guide2

I did read much of that guide earlier, as well as he full FAQ for the I-130, but it seems to contradict itself? In the FAQ, under the question,
" I want to marry my fiance/fiancee who is here in the US on a visa, can I marry him/her here in the U.S, and if I do, will he/she be sent back to his/her home country until the I-130 is approved?? "
It mentions that if we married while on a legal visa at the time, she wouldn't need to return. Although, it warns if she had come here on a tourist visa with intention to immigrate, this is considered fraud and thus should return to her home country. But who's to say it was intentional or not? We didn't intend for this, but couldn't immigration accuse us of fraud?

 

If I'm understanding you all correctly, since I married her on the 14th, and the immigration office is to receive the first part of the AOS process on the 21st, (that being only the I-130 since we could not afford to file both simultaneously) she is free to remain in the USA and disregard the return date of the 24th that is stamped on her passport?

Sorry, I just want to be as clear as possible with where I'm at with this. I've been given many different answers and for my wife to overstay past the 24th could result in consequences.

Edited February 20, 2017 by BlueBlur25

[NikLR 13,232]

You are married. She was allowed in by the CBP.  She can stay.

Did you already file the I-130?

If yes - wait for the NOA1 (first notice of action) then file the I-485, I-864, I-131 and I-765 at the same time with required documentation and fee. She will have to do a medical exam in the USA.  

You must file the AOS asap so she can get EI if she qualifies once her EAD kicks in and so that she has legal status in the USA. The I-130 NOA1 does not confer any legal status but the I-485 NOA1 does. 

Be aware that having a baby in Canada is free for her and costs a small fortune in the USA.  Most health insurance does not cover 100%. She does not qualify for medicare however this can vary by state and some will cover an unborn USC child.  I understand that she doesnt want to go through pregnancy and birth alone, of course you could have gone up to visit and be there for the birth, but you two have decided on this journey so take the AOS route. 

[NikLR 13,232]

~~moved to AOS from work, tourist and student visas from IR1/CR1 process and procedures. ~~

 

K3 is obsolete so dont even think about it anymore regardless of what the USCIS or anyone tells you.  Even if it does go through to interview, which happens less than 1% of the time, it's an inferior visa to the CR1, takes the same amount of time, and costs twice as much. 

[Hypnos 6,578]

As stated, an I-130 does not permit someone to stay whilst it's being processed, but an I-485 does. 

[BlueBlur25 0]

1 hour ago, NikLR said:

You are married. She was allowed in by the CBP.  She can stay.

Did you already file the I-130?

Yes, we married on Feb.14th but she was allowed in on February 1st before that of course, just to clarify. We filed the I-130 a few days later on the 17th, FedEx is delivering it with required signature Tuesday morning the 21st. I was told I would be notified and given a sort of tracking number? Is this the NOA1? 

 

56 minutes ago, Hypnos said:

As stated, an I-130 does not permit someone to stay whilst it's being processed, but an I-485 does. 

And you know, I've read this, but then.... I've been told the opposite of this.

 

So between NikLR and you Hypnos, I'm once again seemingly getting different answers on the matter.

[Hypnos 6,578]

@NikLR agreed with me that she can stay if an I-485 is filed. 

Edited February 20, 2017 by Hypnos

[BlueBlur25 0]

10 minutes ago, Hypnos said:

@NikLR agreed with me that she can stay if an I-485 is filed. 

Alright, so we're screwed if we don't get the I-485 done prior to her B2 return date of the 24th, right? So she'll need to leave until the I-485 is filed, otherwise she would be in an overstay status and that could cause us complications....

 

 

 

 

[NikLR 13,232]

1 hour ago, BlueBlur25 said:

Alright, so we're screwed if we don't get the I-485 done prior to her B2 return date of the 24th, right? So she'll need to leave until the I-485 is filed, otherwise she would be in an overstay status and that could cause us complications....

 

No, you're not screwed. She will accrue overstay which will lead to a ban, if she leaves the USA, after 180 days.  She does not need to leave but will not have legal presence and is deportable so travel isn't advised. She should not leave until after she gains her AP.  If she leaves now she should follow the IR1/CR1 visa path.  I suggest she stays in the USA and you put her on your health insurance. Once you can file thr AOS. Make it a priority.